Saturday, 21 April 2012

Five IP Myths And Why We Shouldn't Believe Them

The three monkeys of government
See no citizens, hear no citizens, speak to no citizens
Is it me or are the Three Monkeys setting policy in our governments? The outcry over PIPA and SOPA has put the IP maximalists on the back foot, crying foul over the tactics employed by netizens to counter their pervasive influence. Meanwhile, our governments have been reminded that they're democratically elected and are seeking to allay our fears of being co-opted into a fascist dictatorship run by and for the big corporations. We need to keep the pressure on by reminding them that most of the claims made by the IP holders' lobby groups are actually bogus.

The fact that our government officials gives these people any credibility at all is cause for grave concerns. Aren't they aware of the profit motives at the heart of the legislative and treaty proposals? The original intent of copyright, patents, and trademarks was to protect innovators and creatives, not to screw the public for every penny the IP holders can get. Here are five of the most prevalent myths the IP holders peddle. I've added some refutations to put them into perspective.

1. There's such a thing as intellectual property

The main reason why I have trouble with the "property" part isn't just the fact that it leads people to try to pretend it's just like tangible property, but because it automatically biases how people think about the concept. - Mike Masnick, Techdirt

The comments section on Techdirt is often as instructive as the posts themselves. The point is, the characterization of patents, copyright, and trademarks as "property" is creating a situation in which copying or innovating on an idea is being treated as theft, even though nothing is being removed or withheld from anyone. To describe this situation in full would require several blog posts. Suffice it to say that calling these things "property" creates an untenable situation in which people are paying repeatedly for items they can never own. This then leads to ridiculous situations in which companies buy the rights to an idea, a design, an image, or a way of doing things that they don't use themselves in order to make money by suing other people for infringement, real or imaginary. It's the "imaginary" infringements lawsuits that cause the most concern and make a mockery of the idea that IP has any real value to innovators or society at large.

2. Intellectual property underpins the economy

This is actually the basis of the assorted laws and enforcement treaties our various governments have attempted to foist upon us, often in closed backroom deals that were intended to be presented as done deals and had little or no input from the real stakeholders: the taxpayers and consumers they wanted to screw. However, a little scrutiny quickly disproves any idea that IP enforcement ensures the future of innovation or that it protects the economy in any way. The intellectual gymnastics required to assert this nonsense is best described in the Intellectual Property and the U.S. Economy: Industries in Focus paper from the Economics and Statistics Administration and the United States Patent and Trademark Office U.S. Department of Commerce. If you can't be bothered to read it, here are some key points:
  • Innovation protected by IP rights is key to creating new jobs and growing exports.

  • Protecting our ideas and IP promotes innovative, open, and competitive markets, and helps ensure that the U.S. private sector remains America’s innovation engine.

  • When companies are more confident that their ideas will be protected, they have the incentive to pursue advances that push efficiency forward, costs down, and employment up.

  • Downstream businesses benefit from innovative products that lower their costs and improve their processes and finished articles.

  • The ingenuity of the American people and their future growth is increasingly dependent on effective protection of IP rights both here and abroad.
Two phrases knock those statements over like a bowling ball: patent trolls and licensing fees. If there was any truth in that report, how come whole governments are either considering a switch to open source software or have already done so? If IP was protected to the degree demanded by the IP holders, there would be no open source programs. The arguments just don't hold up, do they? Yet this particular myth continues to be pushed as the foundation of ACTA, TPP, et al.

3. Failure to enforce IP rights harms innovators and creators

Possibly the most ridiculous assertion of the lot, this myth spawns visions of starving artists and inventors weeping over the wholesale theft of their ideas in their draughty garrets, surrounded by rats and photocopies of infringers' full moons. The most egregious lie told by Chris Dodd (pictured left) is that IP enforcement built the internet.
The internet itself would have been in deep trouble, if you'd had this attitude about copyright twenty years ago -- where the very ideas that gave birth to this industry would be at risk. - Chris Dodd, in a talk to the National Association of Attorneys General meeting in Washington DC

Actually, the opposite is true. Proprietary attitudes and licensing would have led to intranets linked via highly-regulated, paid-for gateways in addition to our ISP services, not the internet we know and love. This would have prevented or stifled the development and open source software and most of the features of the internet as we know it just wouldn't exist today. It certainly wouldn't be as accessible to the public, most of whom would no doubt be unaware of its existence except as a tool used by governments and academics. Whole chunks of it would have been used by corporations, academic institutions and governments, shutting the rest of us out and restricting access to information to what was available via terrestrial channels. In fact, this appears to be what certain governments are trying to do. This is why website blocking and censorship is so bad: it's incredibly easy to abuse, and often is.

4. Protecting IP is more important than human rights

The IP maximalists are in such an utter tizz about the threat to their old monopolies they've lost all sense of moral direction. This is why the negotiations over ACTA, TPP and all the legislation they've been trying to bring in have been done in secret.

If this seems like a harsh assessment, take a look at this quote
In India, organisations like UNITAID have protested efforts to strengthen patent protection through free trade agreements, arguing they threaten affordable access to medicines in developing nations. - James Nurton, Managing Intellectual Property
in context. Really, don't just take my word for it, see for yourselves. In case you don't get it, this is the problem: they don't care who suffers as a result of their greed. In my opinion, essential services should never be controlled by entities that work on a for-profit basis. It just causes too many problems.

5. Intellectual property enforcement protects us from (dangerous) counterfeits

What, the flammable pyjamas and the poisonous counterfeit drugs? Erm, no. First of all, some of these counterfeits are so convincing it's hard to spot the difference. Secondly, the IP laws in countries like China and Russia, allegedly the worst offenders, aren't very tough and the IP enforcement treaties being proposed are unlikely to be adopted by them. If IP rights can't be enforced in the countries that offend the most, how can enforcing them over here protect anyone? Presumably, this means enforcing them at the borders by searching for counterfeit goods, but that in and of itself just creates more problems, e.g. if border guards can't tell the difference between generic and counterfeit drugs. The USTR can't. Moreover, infringing products are usually bought over the internet so how can you combat that using IP enforcement laws? Apparently, the answer lies with turning the search engines into IP cops but how can they tell whether or not a product is infringing and is it really their job to do so? In my opinion, getting other people to fight your battles for you is a bad idea and innocents get caught up in the crossfire. Fight your own battles.

Does this mean we don't need IP laws at all?

This is a question we'll have to address sooner or later. My own opinions are evolving and I'm not quite ready to take a full stand on anything more than the urgent need to reform IP law in a meaningful way. Suffice it to say that the terms are too long, the enforcement is disproportionate and the IP holders aren't doing enough to create legal alternatives. This doesn't mean I approve of piracy. I don't, but I can understand it. Wanting something, however badly, does not justify infringement. The subject needs to be fully debated with all stakeholders, even the IP holders, represented. Recent government initiatives have been encouraging but don't go quite far enough in terms of making IP law make sense in the age of the internet. Meanwhile, we're stuck fighting off legislation billed as protecting us but really is all about surveillance and censorship. It seems to me we're in this for the long haul because the people behind all this will not give up on their desire to control us.

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